COVID-19: What Employers Need to Know About Permissible Medical Inquiries and OSHA Requirements

Director-General Tedros Adhanom Ghebreysus of the World Health Organization (WHO) announced March 11, 2020, that the WHO has officially declared COVID-19 (Coronavirus) a pandemic. Employers should follow the Equal Employment Opportunity Commission’s (EEOC) pandemic guidance, “Pandemic Preparedness in the Workplace and the ADA,” which details the specific medical testing and inquiries employers may make of their employees during the pandemic. Ordinarily, these inquiries would generally be prohibited by the Americans with Disabilities Act (ADA) absent applicable exceptions. The EEOC Guidance states ADA-covered employers may:

Measure body temperatures (EEOC notes that some people with influenza may not have a temperature).

Ask employees if they are experiencing influenza-like symptoms, “such as fever or chills and a cough or sore throat.”

Send employees home if they are experiencing any of the Coronavirus symptoms.

Inquire as to where an employee has traveled (business or personal travel) and require them to remain at home until it is clear they do not have pandemic influenza symptoms.

Adopt infection control practices and wear personal protective gear (unless disability needs preclude and then accommodation should be considered absent undue hardship).

Ask employees why they have not been at work when they return – this is not a disability-related inquiry.

Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. Only those with a need to know should be informed of any Employee’s medical condition.

Employers must limit questioning regarding symptoms to those deemed official symptoms by CDC/DHEC, provided here.

Ordinarily, disability-related inquiries or medical examinations by employers of employees are prohibited unlessthey arejob-related and consistent with business necessity. A disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

An employee’s ability to perform essential job functions will be impaired by a medical condition; or

An employee will pose a direct threat due to a medical condition. The ADA defines “direct threat” as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

Notably, the EEOC’s guidance was not issued specifically in regards to employers who are health care providers or offer health-related care to high-risk individuals. Health care providers should also be following the guidelines that the CDC issued for health care service providers, provided here.

Chris Gantt-Sorenson is a highly effective trial lawyer who concentrates in employment defense litigation. Chris chairs Haynsworth Sinkler Boyd’s Employment Law practice group and is a frequent contributor to the group’s SCEmployersBlog.

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Haynsworth Sinkler Boyd’s Labor and Employment attorneys cover the entire scope of the employment relationship. Consistent with our general approach to assisting our clients with avoiding or resolving legal disputes, our objective with this blog is to share information and offer a perspective on legal issues facing South Carolina employers.